Federal Judges, Social Media, Technology

An Update On The Federal Judge And 'His' Twitter Account

What does the government have to say in defense of the allegedly tweeting judge?

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We recently wrote about a federal judge and his controversial Twitter feed. In United States v. Sierra Pacific Industries, appellant Sierra Pacific argues that Judge William B. Shubb (E.D. Cal.) showed improper bias through his Twitter activity and that, on remand, the case should be handled by a different judge. But we noted in our story that “we don’t yet have the government’s brief, which will presumably defend Judge Shubb’s actions.”

We now have the government’s brief on the Twitter issue, as well as Sierra Pacific’s reply brief. So here’s a quick little update.

The government essentially offers two arguments. The first is procedural: the Twitter activity that Sierra Pacific complains about and attributes to Judge Shubb isn’t a proper subject for judicial notice because we have no official confirmation that the Twitter feed in question (@Nostalgist1) is actually “his” Twitter feed. The second is substantive: even assuming it’s Judge Shubb’s Twitter feed, his tweeting the headline to an article about a ruling he already made is simply an “innocuous Tweet [that] would not show bias or even an appearance of partiality.”

Sierra Pacific has basically one argument: seriously? It gathers extensive circumstantial evidence to make a very strong case that the @Nostalgist1 Twitter feed is in fact Judge Shubb’s Twitter feed.

It seems to me that Sierra Pacific has the better of the argument on whether, as a factual matter, the Twitter feed in question is controlled by Judge Shubb. If I were forced to wager a large sum of money on whether or not Judge Shubb is behind the @Nostalgist1 Twitter feed, I would bet that he is. Just read Sierra Pacific’s reply brief.

But the other issues — whether this is a proper subject for judicial notice, and whether the offending tweet shows bias requiring recusal — strike me as much closer. Whether or not Judge Shubb controls the @Nostalgist1 Twitter feed is far from a textbook case for judicial notice. Rule 201 of the Federal Rules of Evidence allows a court to judicially notice a fact “that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” So it would apply to indisputable facts like “a new Star Wars movie is coming out”; “cronuts are delicious” (thanks for that, Elie Mystal); and “Alex Kozinski is the hottest judge in the federal judiciary.” It’s less clearly applicable to speculation, even well-founded speculation, about the ownership or control of an unverified Twitter account.

And one could also argue, as the government does, that the straightforward tweet of a newspaper article headline — even a somewhat inaccurate headline, like the one at issue here — does not show bias beyond any de minimis level, especially since the decision had already been issued. Judges talk all the time about why they believe they reached the correct decision in case X or Y (see, e.g., Supreme Court justices discussing in public appearances why they voted the way they did in a given case, based on the reasons set forth in their opinions).

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Check out the briefs via the links below. Readers, what do you think? Who has the better of the argument here?

United States v. Sierra Pacific Industries: United States’ Opposition to Appellants’ Motion for Judicial Notice [U.S. Court of Appeals for the Ninth Circuit]
United States v. Sierra Pacific Industries: Appellants’ Reply in Support of Motion for Judicial Notice [U.S. Court of Appeals for the Ninth Circuit]

Earlier: A Federal Judge And His Twitter Account: A Cautionary Tale

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